Ethics problems in law, education inform message on Christian ethics in biblical story of widow's offering

Last Sunday, it was my privilege to deliver a message on "Christian ethics," arising from Mark 12:41-44, at my local church in Barrington, R.I.

The service is posted on the church website. The message begins at about 31 minutes and runs about 24 minutes in duration.

I used two problems in conventional ethics as jumping off points: one, from legal ethics, a lawyer's unintentional acquisition of privileged records produced mistakenly in discovery; and two, from higher education, a student's unintended acquisition of an unfair academic advantage.

I used the term "doing ethics," which I borrow from, though it is not unique to, the work of Bob Steele (no relation), Jay Black, and Ralph Barney, with a powerful assist by Lou Hodges, in journalism ethics in the 1990s. I was privileged to have a front-row seat when they worked out the revised code of ethics for the Society of Professional Journalists at that time, especially the game-changing "Minimize Harm" principle.

In crafting the church message, I am indebted especially to mentors Eric D'Agostino and Scotty Neasbitt, who helped me navigate the research; and to my church leadership, including Dan Harrington, who writes thought provokingly for the ProJo; and, always, to my wife, an unflinching editor.

I note that, as always, this blog is personal and not affiliated with nor controlled by my employer. Sometimes content on this blog serves both to inform the public and to educate my students about the law. This posting, however, concerns religious belief and is exclusively personal in nature. No public resources nor on-the-job time was used in the work of the above-described message, nor in the production of this blog post. At the same time, of course, readers of any and every religious tradition and belief system are welcome on this page and at The Savory Tort, just as all students are welcome and encouraged in my classroom.

As Jacoby talk commemorates Kristallnacht, Ukraine recurs in historical record of flights from oppression

An upcoming talk on Kristallnacht, a recent experience in the Paraguayan Chaco, and the ongoing war in Ukraine have me thinking lately about cultural and religious freedom.

In commemoration of Kristallnacht, award-winning Boston Globe columnist Jeff Jacoby will speak at the S. Joseph Solomon Synagogue of the Maimonides School in Brookline, Massachusetts, on Sunday at 7 p.m. The talk will be livestreamed.

Jacoby's father was the sole survivor of his family at Auschwitz. 

"He didn’t hate God for what he had lost and didn’t abandon the Judaism in which he had been reared," Jacoby wrote of his father. "On the contrary, he deepened it with observance, study, and prayer."

Last week I had the privilege of visiting Mennonite communities in the Chaco region of Paraguay. Mennonites arrived in Paraguay in three waves, circa 1875, 1930-32, and 1947. Each time, they sought refuge from regimes that wished to extinguish their religious freedom, if not their lives.

Restored "Koloniehaus" at Filadelfia, Paraguay
RJ Peltz-Steele CC BY-NC-SA 4.0

On a world map at the Fernheim Colony House in Filadelfia, I was struck in particular by one remarkable line tracing Mennonite migration. The journey ran eastward from Ukraine, then Austria-Hungary, to Siberia in 1908; then further east to China, turning south to Indonesia in 1927; then turning back westward across the Indian Ocean and isthmus of Suez, to Europe; and at last on to Paraguay to join the end of the second migration there in 1932.

Besides the astounding odyssey it represented, the line resonated with me both because of the current conflict in Ukraine and because my own grandfather's Jewish family fled what is today western Ukraine at about the same time.

Map at the Filadelfia Mennonite Museum,
similar to the one at the Colony House
RJ Peltz-Steele CC BY-NC-SA 4.0
with no claim to underlying work

As has been widely reported, one Russian strategy in the present war in Ukraine is the forced relocation of Ukrainians, especially children, to Russia, whether to be given passports and politically and culturally Russified, or, in the case of dissenters and combatants, to be condemned and disappeared in remote parts. The strategy is not new.  Just before the Russian invasion of Ukraine in February, I wrote about the forced relocation of Polish ethnic minorities, such as the Lemkos, from western Poland to Soviet Russia in 1947.

The parallels are not coincidental.  The Mennonites fled increasingly unstable Austria-Hungary for Russia before the outbreak of World War I. Then, scarcely a decade after the Russian Revolution, rising nationalism rendered even Siberia inhospitable, prompting the exodus of the late 1920s. After World War II, Mennonites remaining in an eastern Germany about to be gifted to the Soviet Union departed in another migratory wave, in 1947. They were not alone; justifiably afeard Christians of other sects departed as well.

Engrossed in the map in Paraguay, I muttered something unkind about Putin. Standing nearby, Fernheim archivist Gundolf Niebuhr said quietly, "History repeats itself."

Niebuhr and I talked about the complex relationship of the contemporary Mennonite Paraguayans with their Latino and indigenous neighbors.  They work closely together, literally, on farms, in schools, and in governance.

But the legacy of repeatedly fleeing oppression, Niebuhr told me, is that even in prosperous and peaceful times, people are dogged by a lurking anxiety over the inevitable impermanence of the idyll. To look around, the Mennonites and their partners have defined the unique cultural identity of the human Chaco. Yet are the Mennonites still only visitors? Will the day come when Asunción says, assimilate, or else? And it will be time to move on again.

Struggle and perseverance are enduring themes in Jewish identity. The former seems inescapable, as expressions of antisemitism abound. Hate simmers now in the Twitter scandals of Kyrie Irving and Kanye West.  Last week, mourners marked the fourth anniversary of the Pittsburgh synagogue attack. Yet the Jewish tradition teaches that anxiety is counter-productive. God will light the way, as always he has. That seems to have been the remarkable faith walk of Jeff Jacoby's father. Still, there are scarce few among us who do not struggle to eschew fears and doubts.

The Jewish people have a strong claim to unrivaled familiarity with persecution. But assimilation and expulsion of the other seems well ingrained in the human mode of operation, regardless of the nature of the otherness. An elder of my Christian church reminded me yesterday that being Christian is not supposed to be easy. The "Good News" might offer salvation, but leisure and luxury are not part of the methodology, at least not in this life.

I live without fear of being alienated in, or exiled from the only home I know. That is a blessing. All of us possessed of that blessing owe open hearts to anyone who loses it, whether in Pittsburgh, Paraguay, or Ukraine.

Museveni still holds reins in Uganda after 35 years, rebuffs allegations of human rights abuses

At age 77, Yoweri Museveni maintains his grip on power in Uganda and yesterday rebuffed criticism by Human Rights Watch.

In 2016, I presented a work-in-progress research paper on history and human rights in Uganda at a regional law-and-society conference at the University of Cape Town, South Africa. I never published the paper; it's a project that I back-burnered and have yearned to return to. At that time, I was nervous about the presentation, because I had never actually been to Uganda; only read about it. There were academics from Uganda in the audience. I was relieved afterward when they said I got it right; I hoped they weren't just being nice.

The impression left on me by my research was that Uganda was, sadly, kind of a backward place. Museveni had, and has, held the presidency since 1986, not long after the Idi Amin regime collapsed. (If you haven't seen The Last King of Scotland (2006), watch it now.)  Museveni is one of those leaders who wins reelection by just too large a margin, and laws have to be changed to allow him to run again. One can't help but lament that Uganda's story is no more than a series of authoritarian regimes exploiting people and resources since the British brought the political entity into existence in the 19th century.

Selfie at a roadside fruit-and-veg stand in Fort Portal, Uganda
CC BY-NC-SA 4.0 RJ Peltz-Steele

So winging into Entebbe in June, I expected to find in Uganda a bleak economic picture: a dilapidated infrastructure built on empty promises and crushed by poverty—maybe like the development-run-out-of-gas picture I found, literally, in Harare in 2020, just before the pandemic savaged what sanctions had not.

I was surprised, then, not to find that at all. To the contrary, there was ample evidence of economic prosperity in the tile-roofed residential and commercial buildings that filled the terraced hills between Entebbe and Kampala. I found a reasonably well outfitted capital in Kampala. The streets were no worse than the dirt-guttered throughways I had navigated in Nairobi. There were decent restaurants; I found a good gym. Subsequently, traveling in the countryside, sure, I saw plenty of poverty and subsistence living. But the picture was no more bleak than supposedly-more-faithfully democratic Kenya with its nearly triple the GDP.

Museveni overlooks street traffic in Kabale, in the Western Region of Uganda.
CC BY-NC-SA 4.0 RJ Peltz-Steele

Museveni-for-President posters are plastered everywhere, from the city to the villages. It's good to be king. But the gentle face that looks out from the posters harbors grim secrets.

What attracted me to research on Uganda in the first place was having learned of the terrifying plight of the LGBTQ population there. In the 2010s, Massachusetts pastor and one-time gubernatorial candidate Scott Lively traveled to Uganda to warn lawmakers of a homosexual menace—practically the same cabal that waged World War II against the world through the secretly homosexual leadership of the Nazi Party, as Lively had recounted in his 1995 book, The Pink Swastika. 

What influence Lively had on the Ugandan Parliament is as unknown as why he had any at all, but the Parliament subsequently enacted the infamous 2014 Anti-Homosexuality Act, which criminalized same-sex relations on pain of life imprisonment, thanks to late amendment, rather than the death penalty, as legislators had first proposed.

The law in Uganda was enjoined by the courts, but it was never the law that was really the problem. The mentality that the law represented justified a regime of brutal abuse and oppression of the gay community, including murder, whether at the hands of public authorities or while authorities stood idle. As a Christian, a Massachusetts scholar, and an Africaphile in comparative law, I was aghast at what Lively seemed to have wrought—though it must be said, for his part, that Lively never countenanced violence.

You can learn more about the matter from many sources, including what is probably my all-time number-one-favorite documentary film, Call Me Kuchu (2012); human rights activist Pepe Julian Onziema's part 1 and part 2 appearances on Last Week Tonight with John Oliver (2014); and documents in the unsuccessful U.S. federal lawsuit, Sexual Minorities Uganda (SMUG) v. Lively (1st Cir. 2018) (at the Center for Constitutional Rights, though don't misread CCR's rosy spin to misunderstand: Lively prevailed, just not as much as he wanted to).

This particular background certainly did nothing to raise my expectations for Uganda. Happily, though, I found in Uganda nothing like the senselessness I had read about. For the most part, I met happy, hard-working people. I found observance of faith, Catholic, Protestant, and Muslim, no different from other parts of East Africa. I saw nothing like a dogmatic mob stirred to feverish rage, like I had seen in a video of a Lively public appearance.

The fault is mine. I gave into stereotypes, because it was easy to generalize "backward" from Uganda's democratic deficit. But that deficit is the aftermath of colonialism, corruption, and the related ills that afflict so much of Africa, not an ailment of ordinary people. I failed to consider that generalizing from the crowd of believers in Lively's audience is about as fair to Uganda as assuming that the January 6 rioters, pictured relentlessly on TV, are representative of all Americans.

Museveni's and other political posters adorn a chai shop in a rural village of the Kabale District.
CC BY-NC-SA 4.0 RJ Peltz-Steele

Yesterday, according to the Uganda Monitor, at a Makerere University law school program on human rights accountability, Human Rights Watch CEO Kenneth Roth confronted Museveni with a report (this one, I assume) detailing unlawful detention and horrific physical abuses of civilians by Ugandan security forces. Roth described the president's dismissive response: "The President said Africa has lived through colonialism, it has lived through slavery, and it has lived through various exploitations by Europeans. He overthrew Idi Amin. Don't talk to him about human rights."

The HRW report doesn't even mention the LGBTQ community. It seems that official disregard for human rights is not so narrow a problem. Anyone who doesn't toe the line with the regime is at risk. 

I loved Uganda. It disappointed only my foolish suspicion that it might be a place beyond redemption. No place is. Certainly no people are.

Ugandans deserve better.

Christian flag, Nazi art color SCOTUS arguments this week, raising First Amendment, choice-of-law issues

On Tuesday, the U.S. Supreme Court heard oral argument in both the Boston flag First Amendment scrap (on this blog) and the latest transnational Nazi-appropriated-art case.

My take of the transcript accords with what I'm reading from commentators (e.g., Brian Dowling (subscription required)): It looks bad for Boston.  The city seems to know that, having already pledged to rewrite its flag policy.  So I'm not sure why this dispute has been belabored into a literal Supreme Court case.

Justice Kagan seemed unsure, too.  She, and not she alone, regarded city commissioner George Rooney's refusal to raise the Christian ecumenical flag on a public pole as based on a mistaken understanding of the Establishment Clause, if "an understandable mistake."

Neutrality in the policy for "guest" flags rides to the rescue, abating any establishment-of-religion issue.  So I don't expect this case will generate establishment or free exercise jurisprudence, nor any new First Amendment principle at all.  The Court seemed willing to locate the case firmly in existing public forum doctrine.  Boston just did a lousy job of defining the forum, creating for itself the "risk of being forced to fly the swastika," in the words of city counsel.

At least the case might yield a neat demonstration-of-principle opinion for law school casebooks.

The same day, the Court heard argument in the latest art appropriation (and expropriation) case.  In the "Woman in Gold" vein, heirs of a Jewish family are trying to recover a Camille Pissarro painting, Rue St Honoré, Apres-midi, Effet de Pluie (1897) (pictured), that came into the possession of respondent Museo Nacional Thyssen-Bornemisza in Madrid.

In its present iteration, the case involves a choice-of-law problem.  Because the Spanish museum is a public entity, the Foreign Sovereign Immunities Act is implicated; claimants are threading the immunity needle through the FSIA "expropriation" exception.  Ownership subsequently hinges on the substantive law of California or Spain.  The district court used federal common law to choose Spanish law and reach a conclusion in favor of the museum.  The claimants assert that California choice-of-law rules should pertain—though it remains arguable that California choice-of-law rules would render a different outcome.

The U.S. Solicitor General is favoring the claimants' position, which generated a curious exchange in oral argument.  Chief Justice Roberts admitted "surprise" that the government wasn't worried about a potential conflict between the federal prerogative in foreign affairs and the application of state choice-of-law rules.  Assistant to the S.G. Masha Hansford responded that if a federal interest were implicated, that problem could be dealt with upon the application of substantive law; and that, meanwhile, state choice-of-law rules employed in other cases have proven fair in choosing between foreign and domestic law.

Boston-based lawyer and writer Martha Lufkin wrote a superb review and analysis for The Art Newspaper (free account after limited access) (HT @ James Romoser). 

The Boston flag case is Shurtleff v. City of Boston, No. 20-1800 (U.S. argued Jan. 18, 2022).  The Pissarro case is Cassirer v. Thyssen-Bornemisza Collection Foundation, No. 20-1566 (U.S. argued Jan. 18, 2022).

Missionaries kidnapped in Haiti reach freedom, but murky U.S. policy generally fails ransomed abductees

Haitian child in 2012 (photo by Feed My Starving Children CC BY 2.0).

News came last week that the last 12 of 17 Christian missionaries abducted for ransom in Haiti in October either escaped or were released, reports vary, and walked miles to freedom. The circumstances of their liberation raise questions about the ongoing apparent lack of any clear U.S. policy on abductions abroad.

Less well reported than the story of the missionaries, Haitian lawyer and university professor Patrice Dérénoncourt was shot and killed on October 31 by the kidnappers who abducted him in October.  Dérénoncourt taught crimonology and constitutional law in the Economic, Social and Political Sciences Department of the Université Notre-Dame d'Haiti.

Dérénoncourt and the missionaries are typical of the some 800 kidnappings in Haiti just this year. Economic desperation and political turmoil have resulted in flourishing gang violence, and kidnappers seeking ransom have targeted aid workers and the education sector, children included.  Struggling to maintain rule of law, the Haitian government has not been able to get a handle on the problem.  Foreign governments seem either habitually disinterested or similarly impotent.

In the Dérénoncourt case, some of the $900,000 ransom demanded had been paid.  It is unclear whether any ransom was paid for the missionaries.  Representatives of the families and, apparently, the U.S. government through the FBI, were involved in negotiation over kidnappers' outrageous demand for $1 million per person.  Whatever reports are accurate, and whether or not a ransom was paid or the pressure simply became untenable, I find it difficult to believe that the last 12 missionaries surmounted a concerted effort by the kidnappers to keep them.

The Biden Administration was understandably tight-lipped about how it was dealing with the kidnapping crisis while it was going on.  Now that the event is over, it's time for an open conversation about what U.S. policy should be, both with regard to kidnappings and to the social and economic catastrophe unfolding less than 700 miles from Miami.

In the broader picture, U.S. policy on abductions for ransom seems at best inconsistent and at worst incoherent.  In late October, families of Americans still detained abroad, in China, Egypt, Russia, Saudi Arabia, and Venezuela, called on the Biden Administration to do better.  "When we do meet with ... officials," the families wrote, "we feel we are being kept in the dark about what the U.S. government intends to do to free our loved ones."

The murder of an educator such as Dérénoncourt sets back rule of law in Haiti not by just one mind, but by a generation of students he would have taught.  Persistent instability in Haiti meanwhile is contributing to a burgeoning refugee crisis in the Americas and threatens to destabilize democracy in the Caribbean.  Even an isolationist American administration can ignore Haiti for only so long.

Boston flag scrap heads to Washington

Three flagpoles at Boston City Hall (photo by Daderot CC0 1.0)

A Boston First Amendment flag-flying case is Supreme Court bound.

The case centers on three flagpoles at Boston City Hall.  The city flies the U.S. flag and POW/MIA flag on one pole, the Massachusetts flag on the second, and usually, the city flag on the third.  However, the city occasionally replaces its own flag with another.  The city refused a request by Camp Constitution, a religiously oriented civic organization, to fly the Christian ecumenical flag.

The First Circuit, affirming the district court, ruled for the city.  The court applied the government speech doctrine, holding that the third flagpole was reserved for the government's own speech, not opened as any kind of public forum for private speech.

The decision was supported by the testimony of city commissioner George Rooney, who said that he reviewed applications for flag raising for "consisten[cy] with the City's message, policies, and practices." The city moreover relied on its own First Amendment obligation not to establish religion.

Camp Constitution maintains that the application process expressly dedicates the flagpole as a public forum, so the First Amendment public forum doctrine should pertain.  In a public forum approach, the appellant reasons, exclusion of the ecumenical flag would be an impermissible discrimination against a religious viewpoint.

As the parties' positions demonstrate, the line between government speech doctrine and public forum doctrine is not always bright.  The government has the power to utter its own messages; think of Nancy Reagan saying, "Just Say No," or President Biden telling people to get vaccinated.

But when government opens a forum for public participation, its ability to censor within the forum is limited to setting the parameters of the forum.  Censorship of messages based on content must satisfy heightened First Amendment scrutiny, and censorship based on viewpoint is generally disallowed.  The paradigm is a bulletin board in a city park where the public is invited to post flyers.

Forums can be metaphysical, too.  Public forum doctrine was employed to limit President Trump's ability to excommunicate Twitter followers.  Tumultuous litigation over vanity license plates in the states have tugged back and forth across the government speech-public forum line, depending on how the government sets up the program.

The problem here is in large part of the city's own making, because, the First Circuit told us, "the City had no written policy for handling flag-raising applications. What is more, Rooney had never before denied a flag-raising application."  So Rooney was processing "applications," when "applications" were not really a thing.

Three months after Camp Constitution initiated litigation, the city adopted a written policy.  The first rule of the policy, on which the city now relies, "forbids the 'display [of] flags deemed to be inappropriate or offensive in nature or those supporting discrimination, prejudice, or religious movements.'"

The city's position is not helped by its history of flying a lot of flags.  The court recounted:

In a twelve-year period (from June 2005 through June 2017), the City approved 284 flag-raising events that implicated its third flagpole. These events were in connection with ethnic and other cultural celebrations, the arrival of dignitaries from other countries, the commemoration of historic events in other countries, and the celebration of certain causes (such as "gay pride"). The City also has raised on its third flagpole the flags of other countries, including Albania, Brazil, Ethiopia, Italy, Panama, Peru, Portugal, Mexico, as well as China, Cuba, and Turkey. So, too, it has raised the flags of Puerto Rico and private organizations, such as the Chinese Progressive Association, National Juneteenth Observance Foundation, Bunker Hill Association, and Boston Pride.

The city balked, it said, when faced with a first request to fly a religious flag.  The city believes that distinction bolsters its position in consistent policy and anti-establishment.  The same fact supports Camp Constitution's position, that the city is impermissibly hostile toward religion.

Flag controversies have been raging across the country.  My own hometown of Barrington, R.I., was rent in factions when, after a racially charged confrontation between residents, the town manager flew the Black Lives Matter flag at the town hall.  The United Veterans Council objected to what it perceived as diminution of the U.S. flag.  Like in Boston, the controversy was fueled by the town's lack of a policy.

The Supreme Court granted cert. in the Boston case yesterday.  Track Shurtleff v. Boston, No. 20-1800, at the Supreme Court and at SCOTUSblog.  HT @ The Volokh Conspiracy.

Lockdown tests religious freedom, responsibility

For two reasons, it pains me to see churches on the news violating stay-at-home rules.  First, like almost everyone, I'm horrified by the potential impact on people's health and lives, put at risk utterly unnecessarily.  Through the Bible, God calls on people to worship together, as a body, e.g. Hebrews 10:24-25. At the same time, as author Jon Meacham told Stephen Colbert in a terrific recent interview, during Passover and in anticipation of Easter, "Being willfully stupid is not part of the Christian tradition."

This might be an especially authentic Easter, Meacham suggested, in the sense that early Christians met in homes, e.g., Acts 12:12, and the disciples, if together, sought refuge behind locked doors after the Crucifixion, John 20:19.  Moreover, I've written previously about the biblical precedent for quarantine.

Second, these stories on the news are man-bites-dog coverage; what's being reported is aberrational, not normal.  And the truth about churches and other places of worship in this crisis could not be more poorly represented.  My church is the norm.  To protect congregants, the elders suspended our live worship service and other on-campus meetings before the law required.  We had Easter services on a live feed, and we're having classes, prayer, and meetings on Zoom.  Most importantly, we encourage and support one another, Romans 14, notwithstanding social distance.  In the absence of coordinated leadership and a functional social safety net from government, communities of faith are filling the gap, keeping people sound of mind and body.  That's the real religion story of the crisis (see also, e.g., NYT Wehner op-ed, Apr. 10).

Winston-Salem, N.C., March 20.  Photo by Breawycker CC BY-SA 4.0.

Seeing authorities in Kentucky and Louisiana effecting arrests and citing drivers at live religious ceremonies that defy government orders, I started to worry what damage these aberrational observances might do to our jurisprudence and tradition of free religious exercise.  Would this be yet another instance of #RuiningItForEveryone?  That is, if courts start making rulings that approve authoritarian government controls over even ludicrous assertions of religious freedom, the unintended consequence might be to water down religious freedom for all of us—however much I try to remain cognizant of the First Amendment's critical function in anti-majoritarianism.

A Methodist preacher on Deal Island, Md.,
probably the Rev. Joshua Thomas in the 1830s.
From Adam Wallace, The Parson of the Islands 93 (4th ed. 1872).

George Scoville, Nashville attorney and adjunct professor in political science at Belmont University, has written an excellent analysis of the present landscape in religious freedom law amid the lockdown, including explication of a recent federal court ruling in the Western District of Kentucky, and the potential application of the U.S. Supreme Court jurisprudence on Native American peyote use.  He writes:

As an initial matter, nobody contests that, under the structure of our Constitution, states have always had plenary police power to regulate the health, safety, welfare, and morals of their citizens–the simple requirement being, at least after the 1860s, that people receive due process of law before a state-sanctioned deprivation of life, liberty, or property.  On the religious liberty question, my gut reaction is that, generally speaking, “safer-at-home” or “shelter-in-place” orders that prohibit gatherings of people larger than some discrete number, or which require that people maintain a proper social distance of some discrete number of feet, are not per se constitutionally problematic.  Rather, these orders, like the criminal prohibition on peyote use that applied to all Oregonians, apply to everyone.

However, As Scoville explains, there might be room for a challenge where the due process thread of the religious freedom argument intertwines with the equal protection thread.  Thus the court in Kentucky entertained the argument that disallowing drive-through worship while allowing drive-through liquor sales was constitutionally problematic.

Read Scoville's treatment at Church Closures During the COVID-19 Pandemic (Probably) Do Not Violate the First Amendment, April 13, 2020.

[UPDATE, April 26, 2020:  Attorney Scoville has authored an op-ed for The Tennessean in which he additionally considers the potential impact of mini-RFRA litigation amid the pandemic.]

[UPDATE, May 15, 2020: The Sixth Circuit has issued an injunction allowing live church services despite the Kentucky Governor's orders.]